On the UN Security Council, Kenyan government
insiders say while the United States, China and
Russia seem to have decided to support Kenya’s bid,
they are unsure of the United Kingdom — which, they
fear, is being influenced by NGOs and lobby groups.
The fifth permanent member, France, is yet to take a
position but is consulting with Kenya.
The Security Council can allow a deferral of a case
before the ICC if its continuation poses a threat to
international peace. Kenya is citing the recent
terrorist attack in Nairobi, in which 67 people were
killed, in its plea for a deferral.
Each of the five permanent members has veto power
to overturn a decision by the 15-member Security
Council.
As Kenya’s plea for a deferral of the cases at the
International Criminal Court (ICC) reach a crucial
phase this week, the country appeared confident of
support from all but one permanent member — the
United Kingdom.
The quest to defer the cases against President Uhuru
Kenyatta and Deputy President William Ruto are set
to come up for discussion and a possible vote before
the United Nations Security Council.
The push comes in the wake of a major setback for
the accused duo last week: The court’s Appeal
Chamber decision to uphold an appeal by ICC
Prosecutor Fatou Bensouda, effectively overturning
an earlier decision that had excused Mr Ruto from
continuous appearance during the trial.
On Friday, President Kenyatta’s legal team lodged a
fresh application asking for a deferral of his case to
February 12 next year as opposed to the scheduled
November 12. In the application, the team cites the
need for time to allow the defence team to
investigate certain aspects of the case and for
President Kenyatta to carry out “essential duties of
state” in the wake of the recent terrorist attack at the
Westgate mall.
On the UN Security Council, Kenyan government
insiders say while the United States, China and
Russia seem to have decided to support Kenya’s bid,
they are unsure of the United Kingdom — which, they
fear, is being influenced by non-governmental
organisations and lobby groups. According to them,
the fifth permanent member, France, is yet to take a
position but is consulting with Kenya.
The Security Council can allow a deferral of a case
before the ICC if its continuation poses a threat to
international peace. Kenya is citing the recent
terrorist attack in Nairobi, in which 67 people were
killed, in its plea for a deferral.
Each of the five permanent members has veto power
to overturn a decision by the 15-member Security
Council.
The request for a deferral, which was formally
presented to the Security Council last week, was
recommended by the African Union during its
extraordinary summit of heads of state two weeks
ago. The AU also resolved that no head of state
should be tried while in office.
READ: Crossroads: Can AU save Uhuru from the ICC?
A deferral is one of the options being explored to
save President Kenyatta, who is charged with crimes
against humanity, from appearing in court for his
trial in The Hague.
The trial of Deputy President Ruto and journalist
Joshua arap Sang is ongoing.
The Trial Chamber has ruled to excuse the president
from attending all sessions of his case.
READ: ICC: Kenya’s president doesn’t have to attend
all sessions
Ms Bensouda wants the decision reconsidered or else
she appeals the ruling the same way she did with a
similar one in Mr Ruto’s case. The court granted her
appeal, ruling that Mr Ruto would be expected to be
present in court except in exceptional circumstances,
which would have to be considered on a case-by-case
basis.
Last week, Mr Ruto was given a few days off to skip
court to allow President Kenyatta to attend a regional
conference in Kigali.
Confidence in US support
Kenya’s confidence in the US government’s support
is based upon remarks by Assistant Secretary for
African Affairs Linda Thomas-Greenfield that the
Barack Obama administration was aware of Kenya’s
concerns following the terrorist attack.
United Nations Deputy Secretary-General Jan
Eliasson, in an interview with The EastAfrican, noted
that while previous pleas for deferral had not been
accepted, it was entirely upon the Security Council to
make the decision.
Meanwhile, a cross-section of Kenyan Members of
Parliament from both the Jubilee and Cord coalitions
have been brainstorming on local mechanisms to
indicate that Kenya is doing something about the
victims of the post-election violence.
A working document of the group The EastAfrican
has come across suggests that it would be critical for
the National Assembly and the Senate to provide
bipartisan backing for the application.
It says that a bipartisan motion in this regard would
send a strong message to the Security Council that
this is a national matter that enjoys broad domestic
support.
Richard Onyonka, the MP for Kitutu Chache, who is
part of the group supporting a bipartisan approach,
said there was a need for a Kenyan-driven solution to
the ICC cases, anchored in ensuring justice for the
victims and fostering national reconciliation while
preserving Kenya’s sovereignty and territorial
integrity.
“It is a bipartisan approach without necessarily
sweeping the events of 2007/8 under the carpet,”
said Mr Onyonka. “We killed each other but some
people are still saying that it is too soon to put things
on the table for reconciliation and would instead
reopen old wounds.”
The report also suggests that both Houses of
Parliament should defer any discussions on pulling
out of the ICC to after the meeting of the state
parties to the Rome Statute, which Kenya has been
pushing for but for which it is yet to secure a date.
The MPs argued in the document that Kenya and
many African countries have been strong advocates
of the ICC and it is therefore not good for the country
to be seen to be withdrawing from the court as that
would be seen as supporting impunity.
They suggest that the National Assembly and Senate
ask the government to convey the message to that
meeting that if amendments are not made, the
legislature would go ahead with plans to withdraw.
The Kenyan parliament voted on September 5 to
withdraw the country from the Rome Statute.
“Tactfully, the threat to end membership has
worked,” says the document,” but this should not
proceed to the next stage of withdrawal.
“Instead, as the African Union has proposed, Kenya
and others should seek to amend the Statute during
the meeting of state parties.”

Tags: | |

Advertisements